People v. Cardenas, Cr. 13147

CourtCalifornia Court of Appeals
Writing for the CourtSTANIFORTH
Citation129 Cal.App.3d 1038,181 Cal.Rptr. 478
PartiesThe PEOPLE, Plaintiff and Respondent, v. Arthur Joseph CARDENAS, Defendant and Appellant.
Decision Date23 March 1982
Docket NumberCr. 13147

Page 478

181 Cal.Rptr. 478
129 Cal.App.3d 1038
The PEOPLE, Plaintiff and Respondent,
v.
Arthur Joseph CARDENAS, Defendant and Appellant.
Cr. 13147.
Court of Appeal, Fourth District, Division 1, California.
March 23, 1982.
Hearing Granted May 20, 1982.

Quin A. Denvir, State Public Defender, and Kenyon C. Keller, Deputy State Public Defender, under appointment by the Court of Appeal, for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., Michael D. Wellington and Thomas F. Mcardle, Deputy Attys. Gen., for plaintiff and respondent.

STANIFORTH, Acting Presiding Justice.

After an unsuccessful motion to suppress evidence (Pen.Code, § 1538.5), Arthur Joseph Cardenas pled guilty to possession of

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marijuana for sale (Health & Saf. Code, § 11359). He was placed on probation for three years and one month conditioned upon serving six months in custody of the sheriff. He appeals, contending his search motion was improperly denied.
FACTS

About 9:30 p. m. on October 22, 1980, a confidential informant (Lee Dawson) working with the Oceanside Police Department went to the home of Cardenas. Detective Brown equipped the informant with a body transmitter and gave him $40 for the purpose of buying marijuana. Under Brown's direction, Dawson went to Cardenas' house, knocked and asked for "Sleepy." Cardenas answered the door, said he was Sleepy. Dawson said he had been told he could "score," i.e., he could buy a $10 bag of marijuana. Cardenas said he was out of marijuana but he was getting a pound bag. He would have to go elsewhere to obtain it. Dawson agreed to come back in 20 minutes.

Officer Hanson, a member of the police surveillance team, watched the Cardenas residence, saw Dawson approach then leave the Cardenas residence. Detective Brown told Hanson Dawson had made the "contact" and related Cardenas' statement to Dawson. A few minutes after the informant had departed Cardenas' door, Officer Hanson saw Cardenas leave in a vehicle with other persons. Shortly thereafter he saw the vehicle return and leave again with Cardenas still in it. About 15 minutes later Hanson and four surveilling officers left the area to return to the Oceanside police headquarters. Enroute, the officers observed the Cardenas car parked at a corner liquor store.

The officers stopped, approached the vehicle, intending to arrest Cardenas for the crime of offering to sell marijuana to Dawson. The officers also had a second ground for arrest. They had previously learned there were outstanding warrants of arrest for Cardenas. Hanson approached the vehicle, saw Cardenas in the front seat on the passenger side with the door opened. Officer Hanson observed a large brown paper sack under Cardenas' legs on the floorboard in the front seat. The bag was closed with top folded or rolled down about one-third from the top of the bag. The inside of the bag could not be seen. Cardenas was then arrested, taken out of the vehicle and the paper bag seized. Hanson opened the bag and removed a clear plastic ziploc bag containing marijuana. The police had no search warrant. It was Officer Hanson's belief, based on the facts known to him, that the bag contained marijuana.

I

Cardenas concedes that under the United States Supreme Court decisions of Robbins v. California, 453 U.S. 420, 101 S.Ct. 2841, 69 L.Ed.2d 744, and New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768, the seizure and opening of the bag taken from the front seat of the car was not violative of the Fourth Amendment to the federal Constitution. The Cardenas concession is well considered. In New York v. Belton, supra, a police officer stopped a speeding automobile containing four men. He learned that none of them owned the vehicle or was related to the owner. He smelled burnt marijuana and saw an envelope on the floor of the car which he associated with marijuana. He ordered the men out of the car and placed them under arrest for possession of marijuana, patted them down, placed them in four separate areas. He then found marijuana in the envelope. He then searched the passenger compartment of the car and found on the backseat a leather jacket belonging to Belton. The officer unzipped one of the pockets and found cocaine. The Belton court sought to define the limits of a warrantless search incident to a contemporaneous lawful custodial arrest of the occupants of the automobile--the precise factual situation we face here. The majority held that even after the occupants had been arrested, removed from the car and were safely in custody, the officers could lawfully search the entire passenger compartment and all containers of any type found therein. (Id. 101 S.Ct. at pp. 2864-2865.) Its rule was based upon a reasoned extension and application

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of Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 and United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427. (New York v. Belton, supra, 101 S.Ct. at pp. 2862-2863.) In Belton, the Supreme Court did not find it necessary to consider the "automobile exception" as a basis for the search and seizure. (Id., 101 S.Ct. at p. 2865, fn. 6.) In contrast Robbins v. California, supra (decided the same day as Belton, supra ) held a closed article of luggage seized in a covered recessed tire well of a car was constitutionally protected from search. (Id., 101 S.Ct. at p. 2847.)
II

Cardenas, however, rests his case on the California Constitution; it is and always has been a document of independent force. (People v. Brisendine, 13 Cal.3d 528, 549-550, 119 Cal.Rptr. 315, 531 P.2d 1099.) It is provided in article I, section 24:

"Rights guaranteed by this Constitution are not dependent on those guaranteed by the United States Constitution."

Therefore, argues Cardenas, California citizens may be entitled to greater protection under the California Constitution against unreasonable searches and seizures. These are sound and accepted propositions of constitutional law. Upon such basis the California Supreme Court has on occasion declined to follow the United States Supreme Court. (See United States v. Robinson, supra, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427.) Corresponsively, the United States Supreme Court (see Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730) concedes that states possess the power to impose higher standards on searches and seizures than required by the federal Constitution. (Cf. People v. Longwill, 14 Cal.3d 943, 123 Cal.Rptr. 297, 538 P.2d 753; People v. Norman, 14 Cal.3d 929, 123 Cal.Rptr. 109, 538 P.2d 237.) From these general premises Cardenas argues this specific conclusion: citizens of California are entitled to greater protection against intrusion than is afforded by New York v. Belton, supra. We examine this question with care for it is decisive of this appeal.

The seizure and examination of the closed paper bag was a warrantless search. This fact requires cognizance of these threshold rules. Warrantless searches are presumed illegal under the Fourth Amendment, subject to only a few carefully guarded exceptions. (Mincey v. Arizona, 437 U.S. 385, 390, 98 S.Ct. 2408, 57 L.Ed.2d 290; Wimberly v. Superior Court, 16 Cal.3d 557, 563, 128 Cal.Rptr. 641, 547 P.2d 417; People v. Dalton, 24 Cal.3d 850, 855, 157 Cal.Rptr. 497, 598 P.2d 467.) The prosecution has the burden of showing a warrantless search falls within one of those exceptions. (McDonald v. United States, 335 U.S. 451, 456, 69 S.Ct. 191, 93 L.Ed. 153; Badillo v. Superior Court, 46 Cal.2d 269, 272, 294 P.2d 23.) Under the "automobile" exception, a car which is stopped on the highway may be searched without a warrant where there is probable cause to believe it contains weapons or contraband or evidence of crime. (Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543; Chambers v. Maroney, 399 U.S. 42, 48-49, 90 S.Ct. 1975, 26 L.Ed.2d 419; Wimberly v. Superior Court, supra, 16 Cal.3d at p. 568-569, 128 Cal.Rptr. 641, 547 P.2d 417.) Probable cause to search exists when an officer is aware of facts which would lead a person of ordinary caution to entertain a strong suspicion that seizable evidence is located in the place to be searched. (Wimberly v. Superior Court, supra, at p. 571, 128 Cal.Rptr. 641, 547 P.2d 417.)

Finally, a warrantless search must be "strictly circumscribed by the exigencies which justify its initiation." (Mincey, supra, 437 U.S. at p. 393, 98 S.Ct. at 2413; Wimberly, supra, 16 Cal.3d at p. 568, 128 Cal.Rptr. 641, 547 P.2d 417.)

III

These general principles are circumscribed by more precise rules applicable in specific factual contexts. One such rule must be noted preliminarily: "A warrantless search of closed containers found within an automobile involves considerations separate from those involved in a warrantless search of the interior of the automobile...."

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...." (People v. Dalton, supra, 24 Cal.3d 850, 855-856, 157 Cal.Rptr. 497, 598 P.2d 467; italics added; People v. Minjares, 24 Cal.3d 410, 153 Cal.Rptr. 224, 591 P.2d 414; see also Robbins v. California, supra, 453 U.S. 420, 101 S.Ct. 2841, 69 L.Ed.2d 744.)

According to dicta 1 in Dalton and Minjares, "closed personal effects," whether boxes, or luggage, or a jacket, found in an automobile, require the People to show not only probable cause to search the closed container "but also that exigent circumstances dictated an immediate search without a warrant." (Dalton, supra, 24 Cal.3d at p. 857, 157 Cal.Rptr. 497, 598 P.2d 467.)

In Minjares, the Supreme Court declared invalid the search of luggage found in the trunk of an automobile. Minjares was arrested in the getaway car. The car was then towed to a storage yard where the police sans warrant opened the trunk in search of a second suspect thought by the police to be hiding in the trunk. In the trunk was a closed tote bag which the police promptly opened and found evidence relating to...

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